Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 0118, 2013 U.S. Dist. LEXIS 162638 (S.D.N.Y. Nov. 8, 2013) [click for opinion]
A magistrate judge granted Plaintiff's request to compel the testimony of Roger Boonstra, an unlicensed in-house lawyer at Citco Bank Nederland, and overruled claims of attorney-client privilege by Defendants. Defendants filed objections to the magistrate judge's order. The district court overruled the objections and affirmed the magistrate's order.
The general rule under United States law is that only communications between a represented party and that party's licensed attorney are privileged. Defendants' communications with Boonstra did not fit within this rule, since Boonstra was unlicensed, or within the limited exception available to a client who reasonably believes the person with whom he is communicating is an attorney. There was no credible evidence that Defendants were reasonably mistaken about Boonstra's status as a licensed attorney, as he was not, and never had been, licensed in any jurisdiction and had neither held himself out to be a licensed attorney nor performed acts suggesting to his employer that he was admitted to the Netherlands bar.
The result would be the same, the court observed, under Dutch law, since the Netherlands, as Defendants themselves acknowledged, does not recognize a privilege for communications between a Dutch company and its unlicensed in-house legal counsel.
The court also found unpersuasive Defendants' attempt to shield the documents on the basis that Dutch law provides only for "severely restricted" document discovery. In fact, the court noted, Dutch law allows wide-ranging document disclosure. Plaintiffs had demonstrated that a culture of regular and extensive unprivileged document production exists in the Netherlands.